dissenting:
Dissenting as I do, from both the conclusion and reasoning in this case, I feel at liberty to state my views of the W'hole case.
It is seen the bill in this case was brought in the Superior ■Court, by Fanny PI. Bexford, since deceased, against Maria Huntington, Julia Bexford, Fayette Bexford, Norman B. Bexford, C. Caroline Massey, Henry H. Massey and Ephraim F. Dennison. The object of the bill was to set aside a deed, bill of sale, and a declaration of trust, made by Heber S. Bexford, Jr., now deceased, in which complainant, who was then his wife, joined in the execution, to Henry H. Massey, as trustee for the grantors, and Ephraim H. Dennison, as successor in trust. The real estate conveyed consisted of about five acres, and the personalty consisted mainly of life policies and other choses in action, the whole property, both real and personal, being of near the value of $7500. The hill of sale and declaration of trust, with the deed, were all ■executed on the 11th day of February, 1882, and were all acknowledged before a notary public, both by Heber S. Rex-ford, and Fanny S. Rexford, his wife, the complainant in this bill. On the 12th day of May next after the execution of these several papers, Heber H. Rexford died, leaving him surviving, his widow, (complainant,) but no child or descendants of any child. Neither of the instruments executed by the parties was placed on record until the next day after the death of the husband. The declaration of uses and purposes for which the deed and bill of sale were made to Massey and his successor in trust, and which was executed at the same time and as a part of the same transaction, provided the trustee should have power to sell and deliver all or any portion of personal. property mentioned in the bill of sale, for the uses and purposes therein expressed, and should have power to lease the real estate, or incumber it for such amounts as the trustee might think necessary to carry out the trust therein declared, and further provided, the proceeds of any such sales of the personal property, and any and all money arising from the leasing or incumbering of the real estate, should be held by the trustee named, or his successor in trust, upon the conditions following: First, to pay all necessary expenses of the trust; and second, to pay to Heber S. Rexford, Jr., during his life, the sum of $40 per month, as he might deem necessary for' the comfortable maintenance and support of the said Heber S. Rexford, and Fanny H. Rexford, his wife, and in the case of the death of the husband before his wife, the like sum was to be paid to her at the same stated periods during her life, and on the death of both husband and wife, it was made the duty of the trustee, or his successor in trust, to pay over and deliver any of the trust funds or property that might then remain in his hands, to the following named persons: To Maria B. Huntington, should she survive both donors, the sum of $250, but should she die first, then the $250 was to be divided as other trust property,—that is, one-fourtli to Julia Rexford, one-fourth to Fayette D. Rexford, one-fourth to Norman B. Rexford, and the remaining fourth to C. Caroline Massey; and it was expressly provided, the trustee should hold the legal title to such real estate, so conveyed to him, subject to the other trusts therein declared, in trust for the said Julia Rexford, Fayette Rexford, Norman B. Rexford and C. Caroline Massey, share and share alike, and on the final distribution of the residue of the estate it was made the duty of the trustee to execute to the several parties named, sufficient conveyances of such real estate, whereupon the trust created should cease and be determined.
Prior to her death, which occurred on the 27th day of October, 1882, Fanny H. Rexford made and published her last will and testament, in which she named Bessie B. Huntington as her sole devisee and legatee. The next day after the making of the will, this bill was filed. After the death of the original complainant, her will was duly admitted to probate, and since then this suit, by leave of court, has been prosecuted in, and been maintained in, the name of Bessie B. Huntington, the sole legatee named in the will. The answers of the several defendants were not under oath, and simply put in issue the principal allegations of the bill. On the hearing, the court found the principal allegations of the bill were sufficiently proved, and rendered a decree setting aside the deed, bill of sale, and declaration of trust, so far as the same affected the rights of the original complainant, and giving to the present complainant the same share of the estate of Heber S. Rexford, Jr., deceased, that his widow would have taken under the statute had he died intestate, except as to the right of dower the widow might have had. It is as to this part of the decree that defendants have assigned error.
The transactions out of which this litigation arose are called in question mainly upon two points: First, that of undue influence in procuring the signature of the wife to the deed, hill of sale and declaration of trust, and that she was overreached and entrapped into the execution of the several papers; and second, that the transaction was nothing more than a testamentary disposition of his property made by Heber S. Rexford, and therefore not binding on his widow after his death. On the other hand, it is maintained the deed, bill of sale and declaration of trust were fairly and understandingly executed by the original complainant, without any improper practices being adopted to unduly influence her action, and that the transaction is an executed trust, and is therefore irrevocable by either party to it.
Construing the making of the deed, bill of sale and declaration of trust together, as simply a testamentary disposition of the property by the husband, and not as an executed trust, then it is not binding on his surviving widow, and, on its being set aside as to her, she would take as in ease of intestacy. Undoubtedly, the law is, where there is an executed trust and nothing remains for the donors to do, it is irrevocable. But it is otherwise as to the mere testamentary disposition of property, either real or personal.' The donor, it is understood, may at any time revoke it, and recall all he has done. In that respect it is no more binding than a will, which, of course, is subject to change or revocation at all times, and the proposed beneficiary can not complain. In this case, defendants claiming the estate paid no consideration. If they take at all, it is simply as donees of the bounty of their deceased kinsman, as under a will, and not otherwise. In that respect it may be said both parties now claiming the property stand in the same relation to it. Neither of them has any equities in his or her favor arising out of any valuable consideration.
Much light will be shed on the subject of the inquiry necessary to be made, by ascertaining the exact condition of the-parties at the time the several instruments were executed.. The parties had been married about five years. They had had two children, both of whom had died in infancy, so that, at the date of these transactions they were childless. Both, of them were in very feeble health, being afflicted with consumption, in its last or fatal stages. The witnesses say it. was difficult to tell which of them was most feeble. It was apparent to all their friends, and perhaps to themselves, that neither one could live but a short time, and their fears proved to. be true. Both of them were unable to do any labor. The husband, for some time before the execution of these papers, had been unable to speak otherwise than in a whisper. He-had been advised by his physician, what he must have known himself, that he could live but a brief time. Shortly before-the making of the deed and other papers, Heber, with his. sister, Mrs. Massey, made a visit to their' brother at Gentralia. His wife was left or remained at home. While there,, the subject of what disposition was to be made of the property seems to have been considered, and the advice of a. lawyer taken. Immediately after their return to Blue Island, where the parties resided, ■ Massey, at the request of his-brother-in-law, Heber S. Rexford, had the deed and other-papers prepared by a lawyer in Chicago for execution. Heber was himself too feeble to go into the city to give the matter any personal attention. It was managed for him by Massey, who was to be, and was appointed, trustee. Although the-papers were all signed and acknowledged on the 14th day-of February, 1882, yet they were not recorded until the next, day after the death of the husband, which occurred on the-12th day of May next thereafter. It is probable the papers,. after they had been executed, remained in the hands of the trustee -named, but how that may have been does not distinctly appear. It does not appear, however, he attempted to do anything towards the execution of the trust prior to the death of the truster. Equity, discarding unmeaning and useless forms, will look at the substance of the act done and the intention with which it was done, and carry out that intention. No matter what form the transaction puts on, equity will penetrate it, and discover the true purpose of the parties to it, and will construe it accordingly. That ought to be done in this ease. The trust declared in this case may have been made in the form of an executed trust, with a design to conceal the real intention of the party to make a testamentary disposition of his property. If so, the form adopted ought not to be permitted to stand in the way of a true construction, otherwise great injustice might be done simply by adopting a covering to conceal the real purpose the party intended to accomplish. That, of course, the law will not permit. The trust attempted to be declared in this ease ought not to be permitted to stand simply because it may appear on the face of the instrument to be an executed trust. The circumstances ought to be examined, and if it shall be ascertained it is simply a testamentary disposition of 'the property, it ought to be so declared, without regard to the form in which it is expressed.
Applying these reasonable rules of construction, the case being considered admits of an easy solution. When the deed and bill of sale were executed and the trust declared, it was under the belief the death of both parties would soon occur. The husband had been so advised, and it was a matter that had been talked over, and neither one had the slightest hope of living beyond a few months. Certainly this arrangement was not made for the purpose of creating a trust for the benefit of either party for the brief period they expected to live. This is plain, from the fact it does not appear the trustee was permitted to have any control or management of the property during the lifetime of the husband. Indeed, as has been seen, the papers were not placed on record until the next day after his death. This would seem to indicate that the husband held control, not only of all his property, but of the papers themselves, so long as he lived. There was unseemly haste in making the conveyances a matter of record after his death. There was, and could have been, no reasonable expectation his wife would live to derive any considerable benefit from the trust attempted to be created in her favor. That could not have been the object in placing the property in the hands of a trustee. What, then, was the purpose ? Evidently it was the intention to cut off the interest the wife would have in the estate of her husband under the statute, and in that way save the property to his heirs to the exclusion of hers. A most inadequate provision was made for the maintenance and support for one in such feeble condition, even for the brief time it was known she could live. The purpose to make a testamentary disposition of his property is most obvious from what occurred when he and his sister visited his brother at Centraba, just prior to the making of the papers supposed to have created the trust. Counsel was taken by the brother whom they were visiting, at the instance of his sick brother, and they were advised- if he made a will his wife would not be bound by it if she survived him—that she could renounce it and take under the statute. It was suggested, and so the advice ran, it might be done by conveying the property in trust. The inquiry, no doubt, was how the husband might make a testamentary disposition of his property so as to most effectually preserve it to his heirs, and in that way prevent any portion of it from passing to his wife under the statute, in ease she should survive him. That must have been the reason why the making of a will was abandoned and the other mode adopted. No doubt the plan adopted was matured in the family council before leaving Centraba, for it was executed as soon as practicable after decedent and his sister returned home. This view is greatly strengthened by the fact that at the same time arrangements were set on foot to surrender a life or benefit policy which the husband had directed should be paid to his wife, and take in its stead a new certificate, payable to Massey on the death of the assured. It will be remembered that Massey had not then been named trustee. All this was done without the knowledge of the wúfe, and it does not appear that she was ever informed of it.
Conceding, then, the evident purpose was simply to make a testamentary disposition of his property by the husband, his wife was not bound by it after his death, notwithstanding she may have joined with him in the execution of the conveyances and in the trust declared. It was a mere shift or device employed to cut off all interest the wife might have in the estate of her husband. Such a scheme or device will meet with no favor. She was in extreme ill-health, and it does not appear she was advised by her husband or any one else of the effect of the act she was doing in joining in the execution of the trust. It would have been highly proper to have furnished her with professional advice as to her rights, and as to the effect of the instrument she was called upon to sign. It is plain, from her subsequent conduct, she did not comprehend what she had done,—certainly not the legal effect of her act. Unaided by friendly counsel, she was too feeble to resist any proposition that might be submitted to her by those interested in the scheme to be adopted. A voluntary disposition of property by the husband, no matter what form is adopted, made with an evident intention and purpose to deprive the wife of her interest in it, as the law defines that interest, will find no sanction in the law. It is such a legal fraud on her as the law will not tolerate. The scheme adopted was simply to make such testamentary disposition of the property by the husband that would deprive the wife of any share of his estate under the> statute, and as it does not appear she was sufficiently advised of the effect of her action in consenting to it, she is not bound by what her husband did. On account of her extremely feeble condition, arising from a mortal sickness, she could not be charged with negligence in not procuring legal advice for herself, to enable her to resist what her dying husband, influenced, as he seems to have been, by his heirs, wished to have done. She had neither mental nor physical force to interpose much resistance, and she may have secured temporary rest by yielding to what it was desired she should do. One of two propositions is true: First,, the trust attempted to be declared was simply a testamentary disposition of the property of the husband, made in view of death, upon no consideration, and therefore not binding on his wife after his death; or, second, it was a voluntary alienation of his property, upon no valuable consideration, made-with intent to deprive the wife of her share of her husband’s-estate under the statute, and was for that reason mala fide, and a fraud upon the law and upon the rights of the wife. In either case the law is, so far as the wife is concerned, the-husband is to be regarded as having died seized of the property, and the widow will take the same portion as in case of intestacy. Although not entirely analogous, the reasoning in the following cases in a measure supports the views expressed : Garnsey v. Mundy, 24 N. J. Eq. 243; Smith v. Smith, 12 Cal. 216; Thayer v. Thayer, 14 Vt. 107.
As respects the benefit certificate in the Knights of Honor,, which was renewed and made payable to Massey, it is claimed he would be entitled to the money under that certificate, outside of the trust, and would have been if no trust had been created. The argument in support of this proposition is,, that decedent had a right to dispose of his own personal property, in -his lifetime, without the consent of his wife. A satisfactory answer to the position taken is, he neither sold it nor gave it to Massey. It was intended he should hold the proceeds, as he did the other property attempted to be assigned, in trust. Making the certificate payable to Massey, was simply a means adopted to facilitate the collection, and nothing more. The husband may not dispose of his personal property by mere voluntary assignment, founded upon no valuable consideration, with intent to defeat his widow of her distributive share under the statute, any more than he may his real estate. There is no reason in law for making any distinction in that respect.
In my judgment the decree of the lower court should be affirmed.